Sunday, October 23, 2011

THIRD PARTY INFORMATION DENIED UNDER RTI ?

Whenever information relating to or
supplied by third party is sought under RTI Act, PIOs refuse stating that
information pertains to third party. Some PIOs issue notice to third party u/s
11.1 and if third party does not permit, PIOs decline supply of information
stating that third party has not permitted or has objected to supply of
information. First appeal needs to be filed based on following points under
such circumstances:

01. Third party should have treated
information as confidential while supplying the information. If it is not
treated as confidential by third party section 11 will not come into operation.

02. Even when party has treated
information as confidential, it has to be disclosed if larger public interest
is involved outweighing in importance any possible harm to interest of third
party. [This is not applicable to information relating to trade or commercial
secrets protected by any law].

03. PIO does not require permission or NOC
from third party. He has to give third party opportunity to be heard orally or
in writing. He should then finally decide whether information should be
revealed or not.

04. Even in case of third party, PIO
has to deny information only under sections 8 or 9 as provided in section 7.1.
PIO is also required to justify how he came to conclusion that section 8 or 9
is applicable for such denial. Similarly third party should have objected to
disclosure only under section 8 or 9, justifying non-disclosure.

05.
Information of third party which is already in public domain has to be
revealed without complying with section 11.

06. Denial of information just because
it relates to or is supplied by third party and /or treated as confidential by
third party, without assigning one or more reasons mentioned in sub-sections of
8.1 or 9 is in gross violation of provisions and spirit of RTI Act.

07. Section 11 comes into play only if
PIO first intends to reveal information subject to hearing point of view of
third party. If PIO does not want to reveal, section 11 does not come into
play.

08. Applicant is entitled to have copy
of say of third party or minutes of oral hearing by PIO based on which PIO has
decided to deny disclosure. This will enable applicant to file first appeal.
This is true of first appeal proceedings also.

09. PIO is also bound to decide whether
information supplied by third party can be treated as confidential by third
party. Third party has to justify why information supplied by it should be
treated as confidential.

10. When information per se or ex facie
cannot be regarded as confidential, then the procedure under section 11 is not
to be followed.

11. As regards information relating to third
party which is not supplied by third party, but created by public authority,
PIO should invoke section 11 only if third party would be justified in treating
information as confidential.

12. Any information which is older than
20 years as on date of RTI application relating to any occurrence, event or
matter of a third party has to be disclosed by PIO, without reference to third
party.

13.
Information generated by govt employees as part of his service cannot be
treated as third party information.

14. Refer CIC decisions as under:

CIC/SG/A/2011/002117/15548 dated 11-11-2011

CIC/AT/A/2009/000821
dated 16-03- 2010.

CIC/SM/A/2011/001687 dated 10-10-2011

CIC/AT/A/2007/01297
dated 29-02-2008.

and following judgments:

Dated 26-11-2010 of Hon’ble HIGH COURT OF GUJARAT

in SPECIAL CIVIL APPLICATION No. 7538
of 2010 [para 8]

Dated
30-09-2011 of
Hon’ble HIGH COURT OF DELHI in LPA No. 719/2010

Dated 25-06-2007 of Madurai Bench of Hon’ble
MADRAS HIGH COURT

In WRIT
PETITION (MD) No.5427 of 2007 and M.P. (MD) Nos.1, 2 and 3 of 2007

It
is advisable to attach this note singed by applicant with RTI application
seeking information of third party, so that PIO does not reply on flimsy
grounds.